Librarian of Congress Gives DMCA Victory to Documentary Filmmakers

October 26, 2012

Back in November 2011, the IDA and Kartemquin Films sent out a request for your help as we were preparing to submit comments to the Library of Congress regarding the Digital Millennium Copyright Act (DMCA). We were requesting that an exemption be renewed to allow all filmmakers to obtain the clips they need to tell their stories under the protection of the law. With your help and support, we submitted these comments for consideration of appending the DMCA’s current restrictions for accessing footage on Thursday, December 1, 2011.

Yesterday, on Thursday, October 25, the Librarian of Congress made his determination in the DMCA Rulemaking. Under the former DMCA exemption, documentary filmmakers were allowed to take materials from DVDs for fair use in their films. We were asking that all filmmakers would be recognized under the exemption.

Most of what was asked for was granted: the exemption was renewed for documentary filmmakers and granted for nonfiction e-book authors “offering film analysis,” on both DVD and online distribution services. This can be considered a HUGE step forward toward making sure that encryption doesn’t prevent documentary filmmakers and e-book authors from fully envisioning their projects.

Jack Lerner, Clinical Associate Professor of Law at the University of Southern California, had this to say about the decision: “This is an important day for documentary filmmaking. In today’s digital environment, technological locks are ubiquitous and confounding. Without this exemption, filmmakers simply could not continue to do what they’ve done for decades: use the language of film to examine and illuminate our culture, history and civic life.” Professor Lerner’s USC Intellectual Property and Technology Law Clinic and Michael C. Donaldson served as counsel for the filing of the comments mentioned above.

“This is a huge expansion of the permission allowing documentary filmmakers to crack DVDs,” said Michael Donaldson, founding partner of Beverly Hills law firm Donaldson & Callif. “Now they may also crack online distribution services. This is a huge step forward. I must acknowledge my co-counsel, Jack Lerner of University of Southern California Gould School of Law.” Michael Donaldson helped to organize the request for the exemption.

“While enthusiastic that the Librarian of Congress has seen the importance of preserving fair use rights for documentary filmmakers in the digital age, I am even more excited to see all the amazing films that that will use this exemption over the next three years,” said Alex Cohen of the USC Gould School of Law.

Another cohort from USC, Brendan Charney, also weighed in about the rulemaking: “We were thrilled to have the opportunity to advocate for such a critical exemption, but the most important work was done by documentary filmmakers who told their stories to the copyright office and made clear why fair use is essential to their compelling work.”

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